About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 76
|
|
P V v E V (843/2018) [2019] ZASCA 76 (30 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 843/2018
In
the matter between:
P
V APPELLANT
and
E
V RESPONDENT
Neutral
citation:
P V v E V
(843/2018)
ZASCA 76 (30 May 2019)
Coram:
Tshiqi, Saldulker, Zondi and Molemela
JJA and Davis AJA
Heard:
13 May 2019
Delivered:
30 May 2019
Summary:
Rectification of an ante-nuptial contract – no common
mistake or misunderstanding between the parties – rectification
not competent – the clear unambiguous terms of the ante-nuptial
contract cannot be ignored.
ORDER
On
appeal from
: Gauteng Division of the
High Court, Pretoria (Louw, Maumela and Molopa-Sethosa JJ sitting as
a court of appeal):
1 The appeal is upheld with costs.
2 The order of the Full Court, Gauteng
Division of the High Court, Pretoria is set aside
and substituted as follows:
‘
a.
The appeal is upheld with costs including the costs of two counsel.
b. The order of the trial court is set
aside and substituted as follows:
i. The counterclaim of the defendant
relating to rectification is dismissed.
ii. The defendant
must pay the plaintiff’s costs relating to the dispute on
rectification.’
JUDGMENT
Tshiqi
JA (Saldulker, Zondie and Molemela JJA and Davis AJA concurring):
[1]
This appeal concerns the terms of an ante-nuptial contract between
the appellant, Mr P V, and the respondent, Mrs E V. On 7 January
2011, Mr and Mrs V signed a power of attorney authorising Mr Weyers,
an attorney, to appear before a notary public to sign an ante-nuptial
contract on their behalf. The marriage between the parties was
scheduled to take place on 8 January 2011. At the time, the appellant
was a professional rugby player, attached to a rugby club based in
Pretoria, and the respondent was a business woman, running a
Finishing and Modelling School for young women with her mother. It is
not in dispute that Mr Weyers was introduced by the appellant
to the
respondent and had before this date legally represented the
appellant. Once the couple signed the power of attorney, Mr
Weyers
had a mandate to register the ante-nuptial contract on behalf of both
parties.
[2]
The power of attorney was signed in the afternoon, after the
rehearsals for the wedding. The appellant arranged to meet with
his
fiancée along a gravel road close to the venue where the
respondent, her family, bridesmaids and the rest of the bridal
guests
were booked. The appellant was in the company of Mr Weyers and his
wife. The respondent was driven to the meeting by her
brother. Upon
arrival and before the power of attorney was signed, the respondent
enquired from her fiancé about the nature
of the document.
According to her, she was not told that it was a power of attorney
but that it was the ante-nuptial contract.
Nothing turns on this,
however, because she testified that during the discussion, it was
revealed to her that the document would
result in her marriage being
out of community of property without accrual. She expressed her
unwillingness to enter into that kind
of matrimonial property regime
and expressed her preference for a marriage out of community of
property with accrual. During the
discussion, she became emotional
and so distressed that her brother went to fetch her mother, who
later joined them. At some stage
during this meeting the couple was
left alone and they continued to discuss the matter. Their versions
on what transpired during
this later discussion differ. It is however
common cause that they were later joined by the rest of the group and
the power of
attorney was signed.
[3]
The appellant and the respondent both testified as to why they
eventually signed the power of attorney. The respondent testified
that they had discussed their matrimonial property regime earlier,
before 7 January 2011, and that she had expressed her wish to
marry
with accrual whilst the appellant was disinclined to enter into such
a regime. When she raised certain concerns during these
discussions,
the appellant was dismissive. On 7 January 2011, when she again
raised her anxiety about the matrimonial property
regime, the
appellant apologised to her, said it was a mistake and that the
mistake would be rectified after their honeymoon to
reflect a
matrimonial property regime with accrual. She was also told by Mr
Weyers that the ante-nuptial contract could not be
changed then, that
she needed to sign it so they could get married the next day and that
Mr Weyers could approach the high court
afterwards and bring an
application to amend the ante-nuptial contract. After they came back
from the honeymoon, she asked the
appellant if the amendment had been
effected and he assured her that it was done. She only discovered
that this was not the case
during the divorce process. Her version
regarding the alleged assurance that the ante-nuptial contract would
be amended was corroborated
by her mother, but was denied by the
appellant and Mr Weyers.
[4]
The appellant confirmed that he had discussed the matrimonial
property regime with his fiancée earlier but testified
that
they had agreed to marry out of community of property without
accrual. He then instructed Mr Weyers to prepare the ante-nuptial
contract. On 7 January 2011, the respondent informed him that she had
discussed their matrimonial property regime with a friend
and was no
longer happy with the exclusion of the accrual. Her main concern
about the exclusion of accrual was what she would get
if they were to
divorce. The appellant was concerned about this, and he asked her
whether she was marrying him for his money. She
told him she wanted
to marry him for love. They then resolved this difference and signed
the power of attorney which gave Mr Weyers
the mandate to appear the
following day before a notary public to sign the ante-nuptial
contract on their behalf.
[5]
The appellant testified that in the evening he received a call from
his fiancée saying she was still unhappy about the
exclusion
of accrual. She enquired if this could be changed. He informed her
that he was not willing to enter into a matrimonial
property regime
which did not exclude the accrual system and was willing to call off
the wedding if she was still unhappy. During
the discussion, he
promised that he would be loyal to the respondent and that he would
look after her. Eventually she agreed that
they could continue. He
thereafter had discussions with Mr Weyers and his family and gave
them an update about the discussions
he had with the respondent.
[6]
Mr Weyers confirmed that the appellant called him that evening to
inform him that his fiancé was still unhappy about
the
proposed matrimonial property regime. He enquired from the appellant
whether they wished to change their mandate because there
was still
time. The appellant undertook to revert. When no call came through
thereafter, Mr Wyers proceeded, as arranged, and appeared
before a
notary public to register the ante-nuptial contract on behalf of the
parties.
[7]
It appears from the pleadings that the parties soon experienced
marital problems. In October 2012, the appellant issued summons
against his wife alleging that their marriage had broken down
irretrievably. He only sought a decree of divorce and costs of
opposition.
A copy of the ante-nuptial contract was attached. The
respondent filed a plea and a counterclaim. She admitted her
signature on
the ante-nuptial contract but denied that the parties
had agreed to exclude accrual. She alleged that it was the common
intention
of the parties for the accrual system to be applicable to
the marriage, with commencement values of the parties’
respective
estates at R0-00; that because of the appellant’s
intentional behaviour, alternatively as a result of a bona fide
error,
the intention of the parties was not reflected in the
ante-nuptial contract. She then asked for rectification of the
ante-nuptial
contract to reflect that the accrual system was
applicable to the marriage.
[8]
The appellant filed a plea to the counterclaim. He denied the
allegations pertaining to rectification, but pleaded that, in
the
event the court found that the accrual system was applicable, it
would be reasonable, on several grounds, if his wife forfeited
any
right to share in the accrual of the estate. In the further
alternative, he pleaded that, in the event the court refused to
make
a forfeiture order, the court should find that the commencement value
of his estate as at the date of marriage was R100 854
as was
reflected in his statement of assets and liabilities on 8 January
2011, and that the commencement value of his wife’s
estate
should be held to be an amount of R522 000 as reflected in the
further particulars supplied upon request from her.
[9]
The trial was allocated to Tlhapi J. As the parties were in agreement
that the marriage relationship had broken down irretrievably,
they
agreed that a decree of divorce should be granted. The respondent
abandoned her claim for maintenance. The issues that remained
for
determination were the prayer for rectification of the ante-nuptial
contract and, the prayer for forfeiture of the accrual
in terms of s
9 of the Matrimonial Property Act 88 of 1984 (the Act). By agreement
between the parties, Tlhapi J was requested
to first adjudicate on
the rectification of the ante-nuptial contract. The prayers for
forfeiture and costs were postponed sine
die. After the hearing, a
decree of divorce was granted immediately and judgment relating to
the ante-nuptial contract was to be
handed down on a later date.
Before judgment was handed down, and as an annexure to the heads of
argument, the respondent filed
a notice of amendment in terms of Rule
28(10) for:
[1]
‘
(a)
Deletion of references to the commencement value of the parties’
estates being R0-00.
(b)
Incorporation of the following claim as an alternative to
rectification:
“
2.2.5
Alternatively, if it is found that that it was the intention of the
Plaintiff to exclude the accrual system:
.
. . .
2.2.5.2
Defendant is therefore, in any event, entitled to an order declaring
that the accrual system for which provision is made
in Chapter 1 of
the
Matrimonial Property Act 88 of 1984
, is applicable.”
(c)
By adding a new prayer:
“
2(b)
an order declaring the accrual system for which provision is made in
Chapter 1 of the
Matrimonial Property Act 88 of 1984
is applicable to
the parties’ marriage.” ’
[10]
The notice of amendment was not opposed. The trial court made an
order declaring that the accrual system as provided for in
Chapter 1
of the Act was applicable to the marriage. The trial court reasoned
as follows at para 16:
‘
What
became very consistent and clear from the entire evidence is that
both [Mr P V] and [Mrs E V] wanted a marriage out of community
of
property and that on the one hand [Mr P V] did not wish the accrual
to be applicable while on the other hand [Mrs E V] wanted
accrual to
be included. I can only conclude that a marriage out of community of
property was concluded and that the agreement be
rectified to this
extent.’
[11]
The matter was taken on appeal to the Full Court of the Gauteng
Division of the High Court, Pretoria, with leave having been
granted
by this Court. In its judgment the Full Court highlighted the failure
by the trial court to make credibility findings but
endorsed the
conclusion by the trial court that there was no consensus between the
parties regarding their matrimonial property
regime. According to the
Full Court, this conclusion was consistent with the evidence
presented and could not be faulted. The Full
Court concluded that the
trial court was correct in its finding that the ante-nuptial contract
should be rectified to provide that
the accrual system was
applicable. It then dismissed the appeal with costs. This appeal is
with the special leave of this Court.
[12]
Although, the respondent had filed an amendment, the trial court
premised its declaratory order on a conclusion that the ante-nuptial
contract had to be rectified. The Full Court went further and said
that Clause 3 of the ante-nuptial contract which provides for
the
accrual system to be excluded was clearly severable from the rest of
the ante-nuptial contract and could therefore be deleted.
The dispute
between the parties therefore centres on whether the respondent could
invoke the remedy of rectification to escape
the clear terms of
Clause 3 of the ante-nuptial contract, on the basis that the
appellant and Mr Weyers had promised that the ante-nuptial
contract
would be amended later. It is thus apposite to first consider whether
on the evidence, rectification was available to
the respondent.
Rectification
[13]
Rectification of a written agreement is a remedy available in
instances where the agreement, through a common mistake, does
not
reflect the true intention of the contracting parties or where it
erroneously does not record the agreement between the parties.
The
predominant requirement for rectification is a common continuing
intention of the parties, which is not reflected in the agreement.
(See
B v B
[2014] ZASCA 14
para 20). To allow the words the
parties actually used in the documents to override their prior
agreement or the common intention
that they intended to record is to
enforce what was not agreed, and so overthrow the basis on which
contracts rest in our law.
(See
Tesven CC v South African Bank of
Athens
[1999] 4 All SA 396(A)
at para 16). It is trite that the
onus is on the party claiming rectification to show, on a balance of
probabilities, that it should
be granted. The major problem before us
is that it cannot be said that the respondent discharged the onus in
that the trial court
did not make any findings on the credibility of
any of the witnesses, did not weigh the probabilities and did not
state which version
it preferred. Its conclusion that there was no
consensus between the parties on the matrimonial property regime they
wished to
conclude, seems to stem from an acceptance by the trial
court of the versions of both parties. This court cannot, as a court
of
appeal, make any credibility findings and is thus unable to either
accept or reject the evidence of any of the parties. Once the
trial
court concluded that there was no consensus between the parties, an
order for rectification was not competent.
[14]
In
Brits v Van Heerden
2001 (3) SA 257
(C) at 282C, it was
held that:
‘
The
mistake may be one common to both parties; the mistake may be that of
only one party; the mistake may be induced by misrepresentation
or
fraud. But there must be a mistake. In my view, the crux of the
matter is that the mistake, be it misunderstanding of fact or
law or
be it an incorrect drafting of the document, must have the effect of
the written memorial not correctly reflecting the parties’
true
agreement.’
The
court continued at 283B:
‘
[R]ectification
may be granted where the written memorial of an agreement does not
reflect the true consensus of the parties.’
[15]
In the heads of argument the respondent’s counsel contended
that the reasoning of the court in
Brits v Van Heerden
is
supportive of their case. This is not so. In this matter there was no
mistake on the respondent’s side when she signed
the power of
attorney, and there was no misunderstanding about the legal
consequences of a marriage out of community of property
without
accrual. This is why she was anxious. I have no difficulty in
accepting that when the respondent called the appellant later
in the
evening on 7 January 2011, to discuss their matrimonial property
regime further, she had reservations about having signed
the power of
attorney earlier. The insurmountable difficulty she faces is that the
trial court did not reject the appellant’s
evidence that she
eventually agreed to marry without accrual during that discussion.
Thus on the evidence available to this Court,
there was no prior
agreement between the parties regarding accrual.
Alternative
Plea
[16]
This then takes me to the alternative plea which was
pleaded through the further amendment annexed to the heads of
argument. The
essence of the plea is that if the court found that the
appellant intended to exclude the accrual system, the respondent did
not
have the intention to do so, and there was no consensus between
the parties. In the event the court made such a finding, then the
respondent was entitled to an order declaring that the accrual system
was applicable to the marriage.
[17]
Generally contracts entered into between adults of full contractual
capacity are enforced to the letter. This court has consistently
said
that courts should refrain from creating contracts for the parties.
The approach to the interpretation of contracts is trite.
In
Novartis v Maphil
[2015] ZASCA 111
;
2016 (1) SA 518
(SCA) this court traversed several cases and summed up the proper
approach as follows in para 25:
‘
First,
the integration (or parole evidence) rule remains part of our law. .
. . If a document was intended to provide a complete
memorial of a
jural act, extrinsic evidence may not contradict, add to or modify
its meaning… Second, interpretation is
a matter of law and not
of fact and, accordingly, interpretation is a matter for the court
and not for witnesses..: Third, the
rules about admissibility of
evidence in this regard do not depend on the nature of the document,
whether statute, contract or
patent... Fourth, to the extent that
evidence may be admissible to contextualise the document (since
“context is everything”)
to establish its factual matrix
or purpose or for purposes of identification, “one must use it
as conservatively as possible”…
’
[18]
The legal principles concerning matrimonial property are also well
established. Parties are allowed to choose their own matrimonial
property regime. Community of property is the first choice at common
law and it applies unless expressly excluded by the parties.
A party
who asserts that the marriage is subject to a certain matrimonial
property regime must prove it. (
Edelstein v Edelstein
,
1952
(3) SA 1
at 9H-10A). Section 2 of the Act provides that every
marriage out of community of property in terms of an ante-nuptial
contract
by which community of property and profit and loss are
excluded, is subject to the accrual system except in so far as that
system
is expressly excluded by the ante-nuptial contract.
[19]
In this matter, clause 3 of the ante-nuptial contract expressly
provides that the accrual system is excluded. Unless it is
deleted,
on the basis of a legally competent ground, the marriage is without
accrual. The trial court thought that it could delete
the clause by
simply finding that there was no consensus. In this regard it erred,
Clause 3 can only be deleted if both parties
had the intention that
accrual should apply. The appellant’s evidence that he would
not have married without the exclusion
of the accrual was accepted by
the trial court, hence; finding that ‘he did not wish the
accrual to be applicable’.
Contrary to this firm finding by the
trial court, the Full Court seems to have preferred the respondent’s
version that the
appellant made an undertaking that the ante-nuptial
contract would be amended after the honeymoon. On this basis it then
concluded
that the alleged undertaking was a term of the ante-nuptial
contract. In this regard the Full Court misdirected itself.
[20]
However, a more fundamental problem with the conclusion of the Full
Court is that s 2 of the Act does not require consensus
to exclude
the accrual system but stipulates that the accrual system must be
expressly excluded in the ante-nuptial contract itself.
Clause 3
expressly did so. If Clause 3 of the ante-nuptial contract were to be
simply deleted on the basis that there was no real
consensus between
the parties, or the mere say so of one of the parties, then the
provisions of s 2 of the Act would be rendered
obsolete, because the
clear and unambiguous terms of an ante-nuptial contract would be
ignored.
[21] Another significant difficulty
for the respondent is that a written ante-nuptial contract is proof
of the terms of the agreement
between the parties. Once it is
registered, it cannot be amended by the parties between themselves
because the effect of registration
is to give notice to the world of
its existence and binds other persons who are not parties to its
terms, including the creditors.
Section 88
of the
Deeds Registries
Act 47 of 1937
provides for authorisation by a court for a
post-nuptial execution of a notarial contract having the effect of an
ante-nuptial
contract, if the terms of the contract were agreed upon
between the parties before the marriage. There was no such agreement
between
the parties in this matter.
[22] Another problem for the
respondent is that s 4 of the Act provides that the accrual of the
estate of a spouse is the amount
by which the net value of the estate
at the dissolution of the marriage exceeds the net value of the
estate at the commencement
of the marriage. The net values of the
parties’ respective estates are not reflected in the
ante-nuptial contract. The declaratory
order made by the trial court
does not address this issue and if it is upheld, it would result in
the absurdity that the ante nuptial
contract would still not be
in compliance with the Act.
Conclusion
[23]
The only ground pleaded in
order to attack Clause 3 of the ante-nuptial contract was
rectification. The amendment in terms of Rule
28(10) simply alleged
that the respondent was entitled to the declaratory order, in the
event it was found that the appellant did
not intend to exclude
accrual. During argument counsel for the respondent was unable to
assist the court on how it could get around
the clear terms of Clause
3. The finding that rectification is not competent in these
circumstances must also mean that the contract
stands.
[24]
For all the above reasons the appeal must succeed. I make the
following order:
1 The appeal is upheld with costs.
2 The order of the Full Court, Gauteng
Division of the High Court, Pretoria is set aside
and substituted as
follows:
‘
a.
The appeal is upheld with costs including the costs of two counsel.
b. The order of the trial court is set
aside and substituted as follows:
i. The counterclaim of the defendant
relating to rectification is dismissed
ii. The defendant must pay the
plaintiff’s costs relating to the dispute on rectification.’
_______________
Z L L Tshiqi
Judge
of Appeal
APPEARANCES:
For
Appellant: JG Bergenthuin SC
Instructed
by: Bernard Van Der Hoven Attorneys, Pretoria
Rosendorff
Reitz Barry, Bloemfontein
For
Respondent: J W Olivier SC
Instructed
by: Bill Tolken Hendrikse, Pretoria
Phatshoane
Henney, Bloemfontein
[1]
As
translated to English by
the Full Court of the Gauteng Provincial Division of the High Court.